News

Published 12.17.2019

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it has finished testing the pilot H-1B registration process for the upcoming H-1B work visa season.  Historically, the H-1B visa lottery would take place the second week of April, after the H-1B filing season would open on April 1st.  Under the new H-1B registration system, the lottery is expected to take place during the second half of March.

What is the H-1B visa?

H-1B is a non-immigrant visa classification used for individuals who seek employment in the U.S. in a specialty occupation or as a fashion model of distinguished merit and ability. To qualify as a specialty occupation, the intended job must require at least a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include jobs in architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting law, theology, and the arts, among others.

In addition, an employer cannot use H-1B workers in a way that would negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. Therefore, an employer must pay the H-1B worker a wage that is at least equal to the prevailing wage rate established for that type of occupation in the applicable geographical area.

Why is there a lottery for H-1B visas?

Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent.  An additional 20,000 H-1B visas are available to individuals who obtained a Master or Ph.D. degree from a U.S. university.  In recent years, USCIS reached the H-1B cap within the first week of April, the beginning of the filing period.   In April 2019, USCIS received approximately 201,000 petitions the first week.  USCIS received 190,000 petitions in April 2018, approximately 199,000 in April 2017, and 236,000 in April 2016.  The year before that, nearly 233,000 petitions. As a result, USCIS subjected the petitions it received to a random, computer-generated selection process equivalent to a lottery. 

Will the lottery be different in 2020?

Yes, the H-1B lottery will see a considerable change this upcoming season.  In prior years, USCIS would accept H-1B filings toward the lottery beginning the first Monday in April and would close the filing period at the end of Friday that same week, then enter the data over the following week and run the lottery around the second or third week in April.  Under that process, employers would submit complete H-1B petitions, including filing fees, legal arguments, application forms, supporting evidence, etc. for purposes of the April lottery.  If they were not selected in the lottery, then all the documents submitted would be returned, and all the effort spent by employers and their attorneys in preparing the H-1B petition would be for nothing.  

For spring 2020, USCIS will implement a more structured system where employers must first register for the lottery between March 1 and March 20.  In this registration process, the employer would enter the company information and basic biographic information about each individual employee it wishes to sponsor, without any supporting documents.  The registration fee for this step is $10.  After the registration period is complete, USCIS will run the lottery based on the registration data and will notify employers as to whether they were selected for any of the employees they listed.  Only those employers/employees selected in the registration lottery will then be required to submit the full H-1B petition, complete with the full filing fees (that may reach a few thousand $$, depending on the case), and the applicable supporting evidence. 

The new system has both advantages and disadvantages.  On the plus side, employers will be able to enter the H-1B lottery by spending less resources and they will not have to invest the full amount of time and money in preparing a complete H-1B packet unless they are first selected in the lottery.  On the downside, the registration process will take place up to a month earlier than usual, which may prevent employers from having a proper opportunity to identify qualified candidates they wish to employ.  That is particularly true for employers recruiting through the on-campus-interview process, which often does not end until March.  Under the new system, USCIS will not accept H-1B petitions unless both the company and the prospective employee(s) were identified and selected in the March registration process. 

Do all H-1B petitions go through the lottery?

No, not all H-1B petitions are subject to the cap or the lottery.  Individuals who already have H-1B status and who are seeking to extend or amend their existing status, or transfer to a new employer, are not counted against the cap unless they have already spent six years in H-1B status. In addition, H-1B petitions filed by an employer that is an institution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a nonprofit research organization or government research organization, among others, are also generally not counted against the cap. H-1B petitions for individuals with a pending permanent residence case are, in some case, also not counted against the cap.

We will continue to monitor the implementation of the H-1B registration process and will provide updates as they become available.  If you are seeking H-1B classification for any employees in the upcoming season, or if you need assistance with any other immigration-related matters, contact Attorney Raluca (Luca) Vais-Ottosen by email at rvo@dewittllp.com or by phone at (608) 252-9291.